PSES 537-19/20 GP
PSES 537-19/20 GP
Award Date:
12 March 2020
Case Number: PSES 537-19/20 GP
Province: Gauteng
Applicant: MAKHAGA V
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Council’s offices in Centurion.
Award Date: 12 March 2020
Arbitrator: MMAMAHLOLA GLORIA RABYANYANA
CASE NO.: PSES 537-19/20 GP
In the matter between:-
MAKHAGA V RESPONDENT
and
GAUTENG DEPARTMENT OF EDUCATION APPLICANT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 03 December 2019 and 30 January 2020
CLOSING ARGUMENTS: 06 February 2020
MITIGATING FACTORS: 03 MARCH 2020
DATE OF AWARD: 12 MARCH 2020
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The enquiry was held on 03 December 2019 and 30 January 2020 respectively at the Council’s offices in Centurion.
2. The employee was represented by Mr T. Tawana a union official of SADTU. The employer was represented by Adv M.Manganye from the department. The proceedings were recorded digitally. The parties were given until 06th and 21st February 2020 to submit closing arguments and aggravating and mitigating factors respectively. The employee submitted the aggravating factors on 03 March 2020. The employer failed due to its representative ‘s hospitalisation.
CHARGES PROFFERED AGAINST THE EMPLOYEE
3. The employer had levelled the following charges against the employee:
Allegation 1
3.1 It is alleged that during the period July 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner P,a grade 5 girl learner from the same school,by touching her bums, hips and breasts.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 2
3.2 It is alleged that during the period July 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner P,a grade 5 girl learner from the same school,by inviting her at the School’s Computer Laboratory wherein you unbuttoned her shirt and when she tried to scream,you then silenced her by kissing her.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 3
3.3 It is alleged that during the period 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner T ,a grade 5 girl learner from the same school,by touching her hips,bums and private parts.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 4
3.4 It is alleged that during the period 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner A ,a grade 5 girl learner from the same school,by brushing her breasts, hips, private parts and entire body.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 5
3.5 It is alleged that during the period 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner R ,a grade 6 girl learner from the same school,by forcefully hugging and touching her breasts and bums.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators, Act 76 of 1998 as amended.
4. The employee voluntarily without duress pleaded guilty to charges 1 and 2 with full understanding of the seriousness of the offences.I satisfied myself that he understood the charges and their seriousness and found him guilty as charged.
ISSUE TO BE DECIDED
5. I am required to decide whether the employee had committed the offences as in allegations 3, 4 and 5. I must also determine the appropriate sanction for offences 1 and 2 as well as for further offences should I find him guilty as such.
SURVEY OF AND EVIDENCE AND ARGUMENTS
COMMON COURSE ISSUES
6. It is common course that the employee, Mr Makhaga is an educator at the mentioned school. The age of the learners is not in dispute and that the employee was their educator at the time of of the offences and alleged offence.
EMPLOYER ’S EVIDENCE
7. Mr Ngobeni Khathutshilo Adam testified that he is the deputy principal at the school. Mr Makhage is in charge of technology and he had a good relationship with him. The allegations were brought to his attention on July 2019 by learners P , A , T and N. Learner A told him that Makhaga was abusing them and that it has been going on for some time. She said he would send other leaners away so he remains with one and he would touch her private parts.
8. Learner T told him that he was going to inform her parents. She said that one day he sent them to get a pencil. When learner P returned it to his computer lab, he closed the door and started touching her private parts. He unbuttoned her shirt and sucked her breast. When they heard footsteps from outside he released her. When she told her friends they came to his office to report.
9. Learner N told him that Makhaga would call her in the morning and start touching her inappropriately. Learner T told him that what was happening to learner N was happening to her. He reported the incidents to the principal who called the SBGT coordinator. The coordinator advised them to call the leaners individually. They confirmed what they had told him. They notified their parents of the incident.
10. During cross examination he said that learner T told him that he was tired of Makhaga touching her inappropriately for some time. She did not report it as she thought it would stop.
11. Learner N testified that she is 12 years old and in grade 6. Makhaga was their grade 4 teacher and taught them Tshivenda in grade 6. Makhaga liked her too much and would send her to run errands. One morning he send her to put his bag and keys in the classroom. He followed her and asked her to kiss him ,she refused. She demonstrated how he stood in front of her, squeezed her breast and bums. She then ran to the assembly. She did not tell anyone because she was scared. Later, learners A, T and P asked her what had happened. She told them. They also told her what he did to them. They told her to report him to the Deputy Principal.
12. Some other time he called them to clean.As she was cleaning behind the cupboard he slammed her with a stick on her bum. The following day they were playing, she was behind the cupboard he came and slapped her bums with open hands.Another day he was playfully chasing them in the classroom. She fell down, he slapped her with the stick on the bums. The following day he called 3 learners and slapped her on the bum with a stick.
13. During cross examination she testified that she had told the deputy principal what Mr Makhaga did to her. She did not tell her parents. Her friends asked her what Mr Makhaga did to her because she was close to him. She was scared to scream when she squeezed her breasts and bums. She could not call for help because everyone was in the assembly. She did not know why he behaved in that manner. It was not painful when he hit her with the stick on the bums but was happy because they were playing.
14. On the morning that he forcefully hugged, squeezed her bums and breast she did not have a class with him .He never came back to the class since then.
15. Learner A testified that she is 12 years and doing grade 5. He regarded Mr Makhaga as his father. He taught her social science in 2018. He taught her for 6 months in 2019. He stopped going to school the day they reported him to the deputy principal.
16. Learners T, P, N and herself reported him because he was touching their breasst and private parts. They felt he might do same to other leaners.He would call them to his class room. Sometimes during break or during the day he would call her to fetch papers and he would touch their breast, bums and private parts.
17. She demonstrated how he would lift her skirt and brush her thighs and hips and spank her bums. He did it about 6 times. She felt scared but did not show him that she was scared. At one point he had sent her to open his classroom. Another time she had gone to request for a book and to fetch papers for her projects.
18. During cross examination she said she reported him because she was afraid he would touch other learners. One day learner P went to ask for a pencil from his class. She came back crying. She told her that sir had touched her bums and sucked her breast.
19. He had lifted her skirts in the classroom. One day he called him in the class and asked him to sit down on his desk at the back of the classroom. Other leaners could not see what was happening. He pulled her dress up. She pulled it down and told him to stop. She felt afraid and moved away. She reported him a month later.
20. Learner T testified that she is 13 years old. She was 12 years at the time of the incident. Mr Makhaga taught her Social Science in Grade 4. She demonstrated that he stood behind her,pushed his private parts against her bums. He touch and squeezed her breast . It happened in his classroom after he had called them. She was with learners A and P. She pushed him away.
21. One day they were in his classroom they were shifting boxes that they we playing with. He wanted to touch her bums. She then stood down to avoid him touching his bums. She told learner P that they should go.He touched her breast three times and she felt uncomfortable. Learner P is the one who came up with the idea of reporting him to Mr Ngubeni.
22. During cross examination she said that he wanted to touch her private parts but he prevented him from doing by sitting down. He tried it twice but failed. When he touched her breast her friends were sitting down. When he pushed him he first looked at her.
EMPLOYEE’ S EVIDENCE
23. Mr Bonani Petersen Makhaga testified that the mistake he made was to become close and emotionally attached to these leaners. He used to give them money during break. When he stopped giving them money they fabricated allegations of sexual harassment.As soon as they started displaying their naughty behaviours he informed his colleague who called them to order.
24. They would come and ask to stay with him during lunch time. He gave learner N a key to open the class and put his bag in.She would be gone by the time he got to the class . He did not remember touching learner A `s bums.
25. During cross examination he said that he called their parents about their disruptive behaviour and also called them to order. They regarded him as their father and he was good to them. He would pay for their civies. When he sent them to the shops they would keep change if it was less than R5.00. He had bonded with the learners.
26. When a version was put to him that it was not true that they fabricated the story because he stopped giving them money, he said he did not know why they created the story. They were not always together. He did not have the tendency of touching learners. Learner N never asked money from him. Learner A lied because of the money.
27. AM testified that Mr Makhaga taught her in 2018. He requested learner H to hug him. Learner N is well mannered. Learners T and A were ill mannered .She had previously witnessed him touching another learner, IM inappropriately. He is a good teacher.
28. During cross examination she said she was not in the same class with the three leaners and would not be in position to talk about their interaction with Mr Makhaga.
CLOSING ARGUMENTS
THE EMPLOYER ’S ARGUMENT
29. The employer argued that Mr Ngobeni’s testimony was not challenged.His evidence was credible and reliable. Learner H was a credible witness and her testimony was consistent.She had no reason to lie about the Mr Makhaga .She believed Mr Makhaga liked her a lot. Learners A and T were also credible and reliable witnesses who could vividly remember what happened.They did not have a reason to lie as they regarded him as a father. Their testimony was not challenged.Mr Makhaga’s defence was a bare denial. The employer was able to prove on the balance of probabilities that he had committed acts of sexual assault on the three learners.
THE EMPLOYEE ’S ARGUMENT
30. The employee’s representative submitted that learner T contradicted the charge against Mr Makhaga, by testifying during cross examination that Mr Makhaga attempted to touch her body parts. Learner A was not telling the truth because she failed to elaborate on how she felt after Mr Makhanga had allegedly touched her and her failure to report the alleged incident when it occurred for the first time. Learner H’s evidence should be disregarded because she failed to explained why she did not scream for help when she was touched against her will. Therefore, Mr Makhaga should not be found guilty.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. In arriving at the coclusion as to whether Mr Makhaga is guilty of the offences proferred against him must determine the following
• if the his conduct was of a sexual nature;
• if his actions resulted in the victims’ sexual integrity being impaired or inspiring the belief that it will be impaired.
• If actions were intentional
• If there are no justifiable grounds for the actions.
32. Learner N’s testimony is that Mr Makhaga had sent her one morning to put his bag and keys in the classroom. He followed her and asked her to kiss him ,she refused. He stood in front of her, squeezed her breast and bums. She then ran to the assembly. She did not tell anyone because she was scared. She was scared to scream when she squeezed her breasts and bums. She could not call for help because everyone was in the assembly. Later, she told learners A, T and P when they asked her what had happened. Another day Mr Makhaga spanked her bums with his open hands as they were playing.
33. I find learner N to be a reliable witness because she was able to explain thoroughly what Mr Makhaga did to him. She had a vivid recollection of the incident and was able to demonstrate. The demonstration was not challenged. Her evidence was credible as it was consistent with no contradictions. Her evidence is corroborated by Mr Ngobeni’s testimony. It is consistent with what Mr Ngobeni said she told him when they reported the incident.In fact the employee’s representative other than asking follow up questions and asking to confirm her evidence led during examination in chief , he did not dispute her evidence.
34. I find her version that Mr Makhaga sent her to the classroom with the intention to isolate her from other learners to pleasure himself when other learners are at assembly to be probable. Mr Makhaga’s version was not put on her to challenge her evidence.
35. Learner A demonstrated how he would lift her skirt and brush her thighs and hips and spank her bums. It happened several times.She was consistent with no contradictions. Her testimony aligned with what Mr Ngobeni testified that she told him when she reported the matter. Her evidence was also not challenged. I find her testimony to be reliable,credible and probably. I am convinced that the witness was able to prove on the balance of probabilities that the employee had committed the offence.
36. Learner T demonstrated that he stood behind her,pushed his private parts against her bums. He touched and squeezed her breast . It happened in his classroom after he had called them. She pushed him away.
37. One day they were in his classroom they were shifting boxes that they we playing with. He wanted to touch her bums. She then stood down to avoid him touching his bums. She told learner P that they should go. The employee did not challenge this evidence. She was consistent with no contradictions. Her testimony aligned with what Mr Ngobeni testified that she told him when she reported the matter. Her evidence was also not challenged. I find her testimony to be reliable,credible and probably. I am convinced that the witness was able to prove on the balance of probabilities that the employee had committed the offence.
38. All the victims’ evidence remain unchallenged despite warning the employee that I will accept any part of evidence that he did not challenge as being truthful. The fact that they did not report the incidents immediately cannot be held against them because it does not disprove that the incidents did not take place. Victims react differently to situations. I find no convincing reason, why the victims would lie about him despite the good relationship they had with him. Therefore, I am convinced that in the absence of contrary evidence and in consideration of the credibility and reliability of the witness Mr Makhaga had committed the offence he had been charged with.
39. I reject the employee’s version in its entirety for two grounds. One that it was not put to the employers’ witnesses for test and that it is not even probable. His witness admitted she was not with the victims as she was in a different class and that she was not in a position to provide direct evidence. Her evidence only relates to character of the witnesses and Mr Makhaga. Her version was not put to the witnesses for test . I find her evidence inadmissible because the witnesses had not testified about their good character. Her evidence even if admissible would have been a shame because in addition to his good character, she testified that she had seen him touching another learner inappropriately.
40. I am satisfied that Mr Makhaga ‘s actions as illustrated by the victims of touching and squeezing of bums and breasts are of sexual nature.Their sexual integrity was inpaired as a result of these actions.Mr Makhaga had at all material times, intention to touch and squeeze the private parts of these learners. The body contact between him and the victms were not accidental.He committed most of these acts in private after making sure that it was only him and the victim. Some he committed by pretending to be playing with the victims when he spanked their bums,yet he knew what he wanted to achieve. There is no justifiable ground for his actions.
41. All elements of sexual assault are present.Therefore, I am persuaded that the employer had proved on the balance of probabilities that Mr Makhaga’s actions amount to sexual assault on the learners.
42. In the premise, I am satisfied that the employer has discharged its onus in proving on the balance of probabilities that the employee had committed offences 3,4 and 5. Therefore, I find the employee guilty on count 3,4 and 5 as charged.
43. Aggravating factors: The employer was not able to provide aggravating factors on account of hospitalization of the representative ,whom according to them was the only one privy to the case. In the closing argument she had submitted that I should consider the prevalence of sexual assault amongst learners by educators and that Mr Makhaga failed to protect the learners by vitiating his status as being in loco parentis.Further that sexual assault is a serious offence which should be prevented at all costs.
44. Mitigating factors: The employee submitted that he is the first offender.He showed remorse by pleading guilty to charges 1 and 2 .He is a breadwinner,currently respobonsible for tuition fees for his child and spouse who are both at university.He is also enrolled at a University.
45. The respondent had requested an indulgence until its representative was well to submit the aggravating factors. Following a consideration to afford the employer 12 days for the recovery of the representative , I decided to proceed with the finding. I am persuaded by the speedy resolution of the dispute objective, enshrined in Labour Relations Act and the fact that the Employment of Educators Act 76 of 1998 “the Act”makes provision for a mandatory sanction for the offences committed by Mr Makhaga. I am of the view that the employer would not suffer prejudice. If any prejudice, it would be less than that it would suffer if I leave the proceedings hanging without certainty.
46. I have weight Mr Makhaga’s mitigating factors against the seriousness of the offences he committed against four young innocent girls who were looking upon him as a father, guide and educator. He had ashamedly violated their constitutional right to dignity and education. He exposed them in a way that no mitigating factor would stand the test of time.These are young primary school girls who are in their formative years who were sent to school to learn and become our future leaders but his actions are seriously harmful and destructive. He breached the trust relationship.
47. A single offence is sufficient for dismissal. However, it happened to four girls not once. He pleaded guilty to two incidents against one learner P.Even if I did not find him guilty on other charges the sanction would still be harsh. He made it a habit to prey on these young girls to satisfy her lustful needs.Therefore, it is not true that the employee was remorseful. He continued to plead not guilty to other 3 charges. He wasted employer’s and Council’s time.He continued to subject the victims’ to emotional torture by making them to relive the incidents during the enquiry. Further to that they had to miss classes to come for this enguiry.
48. In terms of Section 17 (1) (b) of the Act, an appropriate and mandatory sanction for a sexual assault of a learner is dismissal.
49. Having found Mr Makhaga guilty of 5 counts of sexual assault on 4 learners and imposing a mandatory dismissal sanctory I am inclined to evoke Section 120(1)(c) of the Children’s Act 38 of 2005 “Children’s Act” that makes provision for any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person to a child,to find that a person is unsuitable to work with children.
50. The evidence is overwhelming that he performed various forms of sexually assault on more than one occasion per victim. As an educator he was vested with the responsibilities provided by not only the Act, but by the Constitution of the Republic of South Africa to protect the children and act in their best interests.He had failed dismally to uphold his duties and the safety of the children in his proximity will be compromised. He had without mercy trumbled their very fundamental right enshrined by the Constitution.Sexual assault offence against the vulnarable children is prevalent in the society.It is a concern that Mr Makhaga was not even a stranger to these children but an educator acting in loco parentis.It is against Mr’s Makhaga‘s horrendous conduct against these primary school children and their best interests , that I am persuaded to find, on my own volion as envisaged in Section 120(2) of the Act, that he is unsuitable to work with children.
FINDING
51. The employee has been found guilty of all 5 counts.
52. Mr Bonani Petersen Makhaga must be dismissed.
53. Mr Bonani Petersen Makhaga is found UNSUITABLE TO WORK WITH CHILDREN in terms of section 120(1)(C) of the Children’s Act 38 of 2005.
54. The General Secretary of the ELRC must ,in terms of Section 122(1) of the Children’s Act 38 of 2005,notify the Director General:Department of Social Development in writing of the findings of this forum made in terms of 120(1)(c) of the Children’s Act 38 of 2005, that Mr Bonani Petersen Makhaga is unsuitable to work with children.
55. The Director General to enter his name, as contemplated in section 120 of the Children’s Act, in part B of the Child Protection Register.
Signed and dated at Pretoria on this 12th day of March 2020.
MG Rabyanyana
ELRC Panellist
Province: Gauteng
Applicant: MAKHAGA V
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Council’s offices in Centurion.
Award Date: 12 March 2020
Arbitrator: MMAMAHLOLA GLORIA RABYANYANA
CASE NO.: PSES 537-19/20 GP
In the matter between:-
MAKHAGA V RESPONDENT
and
GAUTENG DEPARTMENT OF EDUCATION APPLICANT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 03 December 2019 and 30 January 2020
CLOSING ARGUMENTS: 06 February 2020
MITIGATING FACTORS: 03 MARCH 2020
DATE OF AWARD: 12 MARCH 2020
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The enquiry was held on 03 December 2019 and 30 January 2020 respectively at the Council’s offices in Centurion.
2. The employee was represented by Mr T. Tawana a union official of SADTU. The employer was represented by Adv M.Manganye from the department. The proceedings were recorded digitally. The parties were given until 06th and 21st February 2020 to submit closing arguments and aggravating and mitigating factors respectively. The employee submitted the aggravating factors on 03 March 2020. The employer failed due to its representative ‘s hospitalisation.
CHARGES PROFFERED AGAINST THE EMPLOYEE
3. The employer had levelled the following charges against the employee:
Allegation 1
3.1 It is alleged that during the period July 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner P,a grade 5 girl learner from the same school,by touching her bums, hips and breasts.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 2
3.2 It is alleged that during the period July 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner P,a grade 5 girl learner from the same school,by inviting her at the School’s Computer Laboratory wherein you unbuttoned her shirt and when she tried to scream,you then silenced her by kissing her.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 3
3.3 It is alleged that during the period 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner T ,a grade 5 girl learner from the same school,by touching her hips,bums and private parts.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 4
3.4 It is alleged that during the period 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner A ,a grade 5 girl learner from the same school,by brushing her breasts, hips, private parts and entire body.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 5
3.5 It is alleged that during the period 2019,while on duty at or near Livhuwani Primary School,you sexually assaulted learner R ,a grade 6 girl learner from the same school,by forcefully hugging and touching her breasts and bums.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators, Act 76 of 1998 as amended.
4. The employee voluntarily without duress pleaded guilty to charges 1 and 2 with full understanding of the seriousness of the offences.I satisfied myself that he understood the charges and their seriousness and found him guilty as charged.
ISSUE TO BE DECIDED
5. I am required to decide whether the employee had committed the offences as in allegations 3, 4 and 5. I must also determine the appropriate sanction for offences 1 and 2 as well as for further offences should I find him guilty as such.
SURVEY OF AND EVIDENCE AND ARGUMENTS
COMMON COURSE ISSUES
6. It is common course that the employee, Mr Makhaga is an educator at the mentioned school. The age of the learners is not in dispute and that the employee was their educator at the time of of the offences and alleged offence.
EMPLOYER ’S EVIDENCE
7. Mr Ngobeni Khathutshilo Adam testified that he is the deputy principal at the school. Mr Makhage is in charge of technology and he had a good relationship with him. The allegations were brought to his attention on July 2019 by learners P , A , T and N. Learner A told him that Makhaga was abusing them and that it has been going on for some time. She said he would send other leaners away so he remains with one and he would touch her private parts.
8. Learner T told him that he was going to inform her parents. She said that one day he sent them to get a pencil. When learner P returned it to his computer lab, he closed the door and started touching her private parts. He unbuttoned her shirt and sucked her breast. When they heard footsteps from outside he released her. When she told her friends they came to his office to report.
9. Learner N told him that Makhaga would call her in the morning and start touching her inappropriately. Learner T told him that what was happening to learner N was happening to her. He reported the incidents to the principal who called the SBGT coordinator. The coordinator advised them to call the leaners individually. They confirmed what they had told him. They notified their parents of the incident.
10. During cross examination he said that learner T told him that he was tired of Makhaga touching her inappropriately for some time. She did not report it as she thought it would stop.
11. Learner N testified that she is 12 years old and in grade 6. Makhaga was their grade 4 teacher and taught them Tshivenda in grade 6. Makhaga liked her too much and would send her to run errands. One morning he send her to put his bag and keys in the classroom. He followed her and asked her to kiss him ,she refused. She demonstrated how he stood in front of her, squeezed her breast and bums. She then ran to the assembly. She did not tell anyone because she was scared. Later, learners A, T and P asked her what had happened. She told them. They also told her what he did to them. They told her to report him to the Deputy Principal.
12. Some other time he called them to clean.As she was cleaning behind the cupboard he slammed her with a stick on her bum. The following day they were playing, she was behind the cupboard he came and slapped her bums with open hands.Another day he was playfully chasing them in the classroom. She fell down, he slapped her with the stick on the bums. The following day he called 3 learners and slapped her on the bum with a stick.
13. During cross examination she testified that she had told the deputy principal what Mr Makhaga did to her. She did not tell her parents. Her friends asked her what Mr Makhaga did to her because she was close to him. She was scared to scream when she squeezed her breasts and bums. She could not call for help because everyone was in the assembly. She did not know why he behaved in that manner. It was not painful when he hit her with the stick on the bums but was happy because they were playing.
14. On the morning that he forcefully hugged, squeezed her bums and breast she did not have a class with him .He never came back to the class since then.
15. Learner A testified that she is 12 years and doing grade 5. He regarded Mr Makhaga as his father. He taught her social science in 2018. He taught her for 6 months in 2019. He stopped going to school the day they reported him to the deputy principal.
16. Learners T, P, N and herself reported him because he was touching their breasst and private parts. They felt he might do same to other leaners.He would call them to his class room. Sometimes during break or during the day he would call her to fetch papers and he would touch their breast, bums and private parts.
17. She demonstrated how he would lift her skirt and brush her thighs and hips and spank her bums. He did it about 6 times. She felt scared but did not show him that she was scared. At one point he had sent her to open his classroom. Another time she had gone to request for a book and to fetch papers for her projects.
18. During cross examination she said she reported him because she was afraid he would touch other learners. One day learner P went to ask for a pencil from his class. She came back crying. She told her that sir had touched her bums and sucked her breast.
19. He had lifted her skirts in the classroom. One day he called him in the class and asked him to sit down on his desk at the back of the classroom. Other leaners could not see what was happening. He pulled her dress up. She pulled it down and told him to stop. She felt afraid and moved away. She reported him a month later.
20. Learner T testified that she is 13 years old. She was 12 years at the time of the incident. Mr Makhaga taught her Social Science in Grade 4. She demonstrated that he stood behind her,pushed his private parts against her bums. He touch and squeezed her breast . It happened in his classroom after he had called them. She was with learners A and P. She pushed him away.
21. One day they were in his classroom they were shifting boxes that they we playing with. He wanted to touch her bums. She then stood down to avoid him touching his bums. She told learner P that they should go.He touched her breast three times and she felt uncomfortable. Learner P is the one who came up with the idea of reporting him to Mr Ngubeni.
22. During cross examination she said that he wanted to touch her private parts but he prevented him from doing by sitting down. He tried it twice but failed. When he touched her breast her friends were sitting down. When he pushed him he first looked at her.
EMPLOYEE’ S EVIDENCE
23. Mr Bonani Petersen Makhaga testified that the mistake he made was to become close and emotionally attached to these leaners. He used to give them money during break. When he stopped giving them money they fabricated allegations of sexual harassment.As soon as they started displaying their naughty behaviours he informed his colleague who called them to order.
24. They would come and ask to stay with him during lunch time. He gave learner N a key to open the class and put his bag in.She would be gone by the time he got to the class . He did not remember touching learner A `s bums.
25. During cross examination he said that he called their parents about their disruptive behaviour and also called them to order. They regarded him as their father and he was good to them. He would pay for their civies. When he sent them to the shops they would keep change if it was less than R5.00. He had bonded with the learners.
26. When a version was put to him that it was not true that they fabricated the story because he stopped giving them money, he said he did not know why they created the story. They were not always together. He did not have the tendency of touching learners. Learner N never asked money from him. Learner A lied because of the money.
27. AM testified that Mr Makhaga taught her in 2018. He requested learner H to hug him. Learner N is well mannered. Learners T and A were ill mannered .She had previously witnessed him touching another learner, IM inappropriately. He is a good teacher.
28. During cross examination she said she was not in the same class with the three leaners and would not be in position to talk about their interaction with Mr Makhaga.
CLOSING ARGUMENTS
THE EMPLOYER ’S ARGUMENT
29. The employer argued that Mr Ngobeni’s testimony was not challenged.His evidence was credible and reliable. Learner H was a credible witness and her testimony was consistent.She had no reason to lie about the Mr Makhaga .She believed Mr Makhaga liked her a lot. Learners A and T were also credible and reliable witnesses who could vividly remember what happened.They did not have a reason to lie as they regarded him as a father. Their testimony was not challenged.Mr Makhaga’s defence was a bare denial. The employer was able to prove on the balance of probabilities that he had committed acts of sexual assault on the three learners.
THE EMPLOYEE ’S ARGUMENT
30. The employee’s representative submitted that learner T contradicted the charge against Mr Makhaga, by testifying during cross examination that Mr Makhaga attempted to touch her body parts. Learner A was not telling the truth because she failed to elaborate on how she felt after Mr Makhanga had allegedly touched her and her failure to report the alleged incident when it occurred for the first time. Learner H’s evidence should be disregarded because she failed to explained why she did not scream for help when she was touched against her will. Therefore, Mr Makhaga should not be found guilty.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. In arriving at the coclusion as to whether Mr Makhaga is guilty of the offences proferred against him must determine the following
• if the his conduct was of a sexual nature;
• if his actions resulted in the victims’ sexual integrity being impaired or inspiring the belief that it will be impaired.
• If actions were intentional
• If there are no justifiable grounds for the actions.
32. Learner N’s testimony is that Mr Makhaga had sent her one morning to put his bag and keys in the classroom. He followed her and asked her to kiss him ,she refused. He stood in front of her, squeezed her breast and bums. She then ran to the assembly. She did not tell anyone because she was scared. She was scared to scream when she squeezed her breasts and bums. She could not call for help because everyone was in the assembly. Later, she told learners A, T and P when they asked her what had happened. Another day Mr Makhaga spanked her bums with his open hands as they were playing.
33. I find learner N to be a reliable witness because she was able to explain thoroughly what Mr Makhaga did to him. She had a vivid recollection of the incident and was able to demonstrate. The demonstration was not challenged. Her evidence was credible as it was consistent with no contradictions. Her evidence is corroborated by Mr Ngobeni’s testimony. It is consistent with what Mr Ngobeni said she told him when they reported the incident.In fact the employee’s representative other than asking follow up questions and asking to confirm her evidence led during examination in chief , he did not dispute her evidence.
34. I find her version that Mr Makhaga sent her to the classroom with the intention to isolate her from other learners to pleasure himself when other learners are at assembly to be probable. Mr Makhaga’s version was not put on her to challenge her evidence.
35. Learner A demonstrated how he would lift her skirt and brush her thighs and hips and spank her bums. It happened several times.She was consistent with no contradictions. Her testimony aligned with what Mr Ngobeni testified that she told him when she reported the matter. Her evidence was also not challenged. I find her testimony to be reliable,credible and probably. I am convinced that the witness was able to prove on the balance of probabilities that the employee had committed the offence.
36. Learner T demonstrated that he stood behind her,pushed his private parts against her bums. He touched and squeezed her breast . It happened in his classroom after he had called them. She pushed him away.
37. One day they were in his classroom they were shifting boxes that they we playing with. He wanted to touch her bums. She then stood down to avoid him touching his bums. She told learner P that they should go. The employee did not challenge this evidence. She was consistent with no contradictions. Her testimony aligned with what Mr Ngobeni testified that she told him when she reported the matter. Her evidence was also not challenged. I find her testimony to be reliable,credible and probably. I am convinced that the witness was able to prove on the balance of probabilities that the employee had committed the offence.
38. All the victims’ evidence remain unchallenged despite warning the employee that I will accept any part of evidence that he did not challenge as being truthful. The fact that they did not report the incidents immediately cannot be held against them because it does not disprove that the incidents did not take place. Victims react differently to situations. I find no convincing reason, why the victims would lie about him despite the good relationship they had with him. Therefore, I am convinced that in the absence of contrary evidence and in consideration of the credibility and reliability of the witness Mr Makhaga had committed the offence he had been charged with.
39. I reject the employee’s version in its entirety for two grounds. One that it was not put to the employers’ witnesses for test and that it is not even probable. His witness admitted she was not with the victims as she was in a different class and that she was not in a position to provide direct evidence. Her evidence only relates to character of the witnesses and Mr Makhaga. Her version was not put to the witnesses for test . I find her evidence inadmissible because the witnesses had not testified about their good character. Her evidence even if admissible would have been a shame because in addition to his good character, she testified that she had seen him touching another learner inappropriately.
40. I am satisfied that Mr Makhaga ‘s actions as illustrated by the victims of touching and squeezing of bums and breasts are of sexual nature.Their sexual integrity was inpaired as a result of these actions.Mr Makhaga had at all material times, intention to touch and squeeze the private parts of these learners. The body contact between him and the victms were not accidental.He committed most of these acts in private after making sure that it was only him and the victim. Some he committed by pretending to be playing with the victims when he spanked their bums,yet he knew what he wanted to achieve. There is no justifiable ground for his actions.
41. All elements of sexual assault are present.Therefore, I am persuaded that the employer had proved on the balance of probabilities that Mr Makhaga’s actions amount to sexual assault on the learners.
42. In the premise, I am satisfied that the employer has discharged its onus in proving on the balance of probabilities that the employee had committed offences 3,4 and 5. Therefore, I find the employee guilty on count 3,4 and 5 as charged.
43. Aggravating factors: The employer was not able to provide aggravating factors on account of hospitalization of the representative ,whom according to them was the only one privy to the case. In the closing argument she had submitted that I should consider the prevalence of sexual assault amongst learners by educators and that Mr Makhaga failed to protect the learners by vitiating his status as being in loco parentis.Further that sexual assault is a serious offence which should be prevented at all costs.
44. Mitigating factors: The employee submitted that he is the first offender.He showed remorse by pleading guilty to charges 1 and 2 .He is a breadwinner,currently respobonsible for tuition fees for his child and spouse who are both at university.He is also enrolled at a University.
45. The respondent had requested an indulgence until its representative was well to submit the aggravating factors. Following a consideration to afford the employer 12 days for the recovery of the representative , I decided to proceed with the finding. I am persuaded by the speedy resolution of the dispute objective, enshrined in Labour Relations Act and the fact that the Employment of Educators Act 76 of 1998 “the Act”makes provision for a mandatory sanction for the offences committed by Mr Makhaga. I am of the view that the employer would not suffer prejudice. If any prejudice, it would be less than that it would suffer if I leave the proceedings hanging without certainty.
46. I have weight Mr Makhaga’s mitigating factors against the seriousness of the offences he committed against four young innocent girls who were looking upon him as a father, guide and educator. He had ashamedly violated their constitutional right to dignity and education. He exposed them in a way that no mitigating factor would stand the test of time.These are young primary school girls who are in their formative years who were sent to school to learn and become our future leaders but his actions are seriously harmful and destructive. He breached the trust relationship.
47. A single offence is sufficient for dismissal. However, it happened to four girls not once. He pleaded guilty to two incidents against one learner P.Even if I did not find him guilty on other charges the sanction would still be harsh. He made it a habit to prey on these young girls to satisfy her lustful needs.Therefore, it is not true that the employee was remorseful. He continued to plead not guilty to other 3 charges. He wasted employer’s and Council’s time.He continued to subject the victims’ to emotional torture by making them to relive the incidents during the enquiry. Further to that they had to miss classes to come for this enguiry.
48. In terms of Section 17 (1) (b) of the Act, an appropriate and mandatory sanction for a sexual assault of a learner is dismissal.
49. Having found Mr Makhaga guilty of 5 counts of sexual assault on 4 learners and imposing a mandatory dismissal sanctory I am inclined to evoke Section 120(1)(c) of the Children’s Act 38 of 2005 “Children’s Act” that makes provision for any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person to a child,to find that a person is unsuitable to work with children.
50. The evidence is overwhelming that he performed various forms of sexually assault on more than one occasion per victim. As an educator he was vested with the responsibilities provided by not only the Act, but by the Constitution of the Republic of South Africa to protect the children and act in their best interests.He had failed dismally to uphold his duties and the safety of the children in his proximity will be compromised. He had without mercy trumbled their very fundamental right enshrined by the Constitution.Sexual assault offence against the vulnarable children is prevalent in the society.It is a concern that Mr Makhaga was not even a stranger to these children but an educator acting in loco parentis.It is against Mr’s Makhaga‘s horrendous conduct against these primary school children and their best interests , that I am persuaded to find, on my own volion as envisaged in Section 120(2) of the Act, that he is unsuitable to work with children.
FINDING
51. The employee has been found guilty of all 5 counts.
52. Mr Bonani Petersen Makhaga must be dismissed.
53. Mr Bonani Petersen Makhaga is found UNSUITABLE TO WORK WITH CHILDREN in terms of section 120(1)(C) of the Children’s Act 38 of 2005.
54. The General Secretary of the ELRC must ,in terms of Section 122(1) of the Children’s Act 38 of 2005,notify the Director General:Department of Social Development in writing of the findings of this forum made in terms of 120(1)(c) of the Children’s Act 38 of 2005, that Mr Bonani Petersen Makhaga is unsuitable to work with children.
55. The Director General to enter his name, as contemplated in section 120 of the Children’s Act, in part B of the Child Protection Register.
Signed and dated at Pretoria on this 12th day of March 2020.
MG Rabyanyana
ELRC Panellist